Categories

A Pakistani father who has detained his four children in the country since 2011 has been ordered to return them to the UK immediately.

In the recently published case of A v A, a couple were married in Pakistan in 1999 before moving to England the following year. They had three children, all born in the UK. However, the father began to travel back to Pakistan regularly from 2006 and the marriage become unhappy. In 2008 the wife took her three children to a domestic violence refuge. The father later returned to Pakistan and the mother was persuaded to take the children to visit him there. During her visit, however, she was put pressure by her husband and family to reconcile and forced to give up the children’s passports. She eventually had a fourth child before eventually fleeing the country and travelling back to the UK without her children.

Back in England the mother went to court. All four of her children were made wards of court and the father was ordered to return them to the UK.

The father challenged the order but Mrs Justice Parker ruled in favour of the mother, declaring that that the youngest child was ‘habitually resident’ in England despite never been here.

At the Court of Appeal, the judges supported her decision in the case of the three older children but disagreed on the issue of the youngest child. Lord Justices Patten and Rimer said they could not accept the concept of child acquiring the habitual residence of their parents, but Lord Justice Thorpe emphasised that the “the defeat of abduction must be supported”.

The mother appealed on the issue of the youngest child and the case then went to the Supreme Court. Lady Justice Hale allowed her appeal, saying the British courts did have the power to make rulings on the basis of youngest child’s nationality but stressed that this was an exceptional power. She sent the case back to the High Court for urgent reconsideration.

Back at the High Court, Mrs Justice Parker noted that the courts had the power to order the return of children on the basis of their nationality under the Family Law Act 1986 but this power was only to used only cautiously.

“In paragraph 62 of the Supreme Court judgment, the court repeated Lord Justice Thorpe’s view that the court should be “extremely circumspect” and “must refrain from exorbitant jurisdictional claims founded on nationality” over a child who was never habitually resident nor present here because claims were “outdated, eccentric and liable to put at risk the development of understanding and co-operation between nations.” “

She concluded, however:

“I have to consider the appropriate forum in which to decide H’s future. It seems to me crucial in this case that the older children have spent their lives in this jurisdiction; that it is a jurisdiction to which the father owes primary allegiance in the sense of nationality (although he also has Pakistani nationality) and also, in the sense of his having been born here and having grown up here and having spent his adult life here. The only reason why the older children are in Pakistan and the only reason why H remains there is because of coercive measures by the father.”

The judge continued:

“I shall direct the father to bring the children back to this jurisdiction immediately and to take all steps within his power to implement that return. The children will not be removed thereafter without the agreement of this court.”

Comments(3)

A pity Lord Justice Thorpe didn’t apply the same “defeat of” principles to those many cases of contact denial he came across in his time as a family law judge. In his day, it was more a case of doing anything to keep a mother happy and an angry, contact-seeking father at bay.

Odd that the UK feels that children can be habitual residents of a country they have never been to. This would seem to be counter to the recent Italian case in which the court determined the baby to be a UK resident despite the nationality of their parents.

Leave a Reply

Stowe Family Law LLP is authorised and regulated by the Solicitors Regulation Authority. SRA ref 469401.
Stowe Family Law LLP is registered with Companies House, ref. OC331570, and registered for VAT, number 918 5722 04.
Calls may be recorded for quality and training purposes.